INTRODUCTION I. EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN ISRAEL: THE ISSACHAROV DECISION A. Issacharov and Meiri: Has Anything Really Changed? B. Distinguishing Admissibility from Weight in Bifurcated and Unitary Courts II. LOST IN TRANSLATION: ADMISSIBILITY IN ISRAELI COURTS THROUGHOUT THE DECADES A. The British Mandate over Palestine: Admissibility as a Legal Standard B. The 1960s: Admissibility as a Separate Procedural Step C. Meiri: Admissibility as Rigidity D. Developments Abroad: The 1980s and 1990s E. The Exclusionary Rule and Rejection of Legal Transplants III. THE ANGLICIZATION OF ISRAELI EVIDENCE LAW A. The Empirical Basis B. The British Mandate and Its Legacy C. Legal Education D. Language and Availability of Sources E. Israeli Procedure and the Common Law F. Why Legal Doctrines Travel: Problem Solving, External Imposition and Emulation G. The Dangers of Treating Foreign Law as Precedent IV. TALKING ABOUT A CONSTITUTIONAL REVOLUTION A. Issacharov and Miranda: Revolution or Evolution? B. How Easy Cases Can Make Bad Law C. Unfinished Business: Issacharov and the Constitutional Revolution D. Comparative Law and Legitimacy CONCLUSION
In recent years, the proper role of comparative law in the jurisprudence of American courts has become a hotly debated and controversial topic. The question was brought to the forefront of the legal community's attention following a number of United States Supreme Court decisions, perhaps most notably in Atkins v. Virginia (1) and Roper v. Simmons, (2) rulings that addressed the constitutionality of administering the death penalty to mentally retarded and juvenile defendants. In both decisions, the Court was divided on whether to regard foreign laws and practices as indicative of an evolving standard of decency when determining whether a punishment should be considered "cruel and unusual" under the Eighth Amendment of the United States Constitution.
Those who oppose reference to comparative law have argued that the use of foreign opinions to interpret domestic law unduly imposes foreign "moods, fads, or fashions" upon Americans. (3) Since laws are enacted by democratically elected representatives, the experience and legislation of other jurisdictions is immaterial and should carry little, if any, authority in their interpretation. (4) Critics contend that using foreign law to determine the proper scope of American legislation may award judges a legislative or treaty-ratifying power, an authority clearly reserved by the Constitution for other branches of government. (5) Judges who have used comparative law in formulating their opinions have been accused of "cherry picking" foreign law that supports their opinions; they have been charged with "sophistry" and disguising their personal and political preferences behind a mask of international consensus. (6)
Proponents of comparative law have countered that although foreign law should not bind American courts, surveying international practices and exploring the approaches of other nations may lend American courts useful insight into common problems and affirm their convictions about correct solutions. As Justice Kennedy has said, "The opinion of the world community, while not controlling our outcome, does provide respected and significant confirmation for our own conclusions." (7) Others have emphasized comparative law's crucial role in prompting us to challenge the necessity and wisdom of doctrines to which we have grown accustomed and that we might view as unchangeable. Foreign law reminds us that other, and perhaps better, solutions might exist elsewhere. (8) True, supporters allow, the citation of foreign law may be prone to abuse, but such risks are neither unique to nor inherent in the use of comparative law. (9)
Despite considerable attention given to the proper role of comparative law in interpreting domestic law, legal scholarship in the United States has concentrated primarily on the use of foreign law by American courts. But especially for those who have emphasized the relevance of foreign experience in addressing common legal dilemmas, examining the approach of foreign courts toward comparative law is an equally informative and relevant inquiry. The use of comparative law by courts is by no means a uniquely American practice; the United States in fact does relatively little of it in comparison to other nations. This Note, therefore, takes a different course: it focuses primarily on the role played by comparative law in the jurisprudence of a foreign jurisdiction--one that frequently relies upon comparative law--and the problems this practice has bred. That is, it offers a comparative angle to the use of comparative law.
More specifically, I offer a case study of a recent decision of the Israeli Supreme Court in Issacharov v. Chief Military Prosecutor, (10) which dealt with the exclusion of illegally obtained evidence. For many reasons the Israeli Supreme Court has often relied heavily on comparative law when formulating its own opinions. However, despite frequent citation of foreign authorities by Israeli courts, this practice has largely escaped controversy. Cases making key use of comparative law therefore abound, as do complications to which this practice may lead. Examining the Israeli use of comparative law also helps underscore some of the differences between the objections raised in the United States and concerns that exist in other countries, highlighting those that are uniquely American and pointing out why the United States may have less to fear from foreign law than some critics suggest.
The Note also addresses a debate closely related to the controversy surrounding the use of comparative law: the possibility and desirability of legal transplants. Opponents of legal transplanting have argued that the deep ties between legal rules and the culture and traditions in which they develop often make it difficult or unwise to transplant the legal rules of one jurisdiction into the judicial system of another. Pierre Legrand, one of the most prominent critics of legal transplants, warns that transplanted doctrines often fail to maintain their original meaning in a new environment and that therefore courts should borrow cautiously and with limited expectations. (11) He and others have criticized the work of "comparativist transplanters," who through the citation of foreign doctrines create a sense of false consensus regarding legal rules. Critics argue that such formal citation of foreign law often overlooks the unique character and operation of a doctrine in its original setting, blurring in the process the distinction between self and other. In contrast, proponents of legal transplants emphasize the important role foreign doctrines have played in legal development since time immemorial. (12) According to Alan Watson and other scholars, it would be impossible to imagine a modern legal system that did not borrow or was not influenced in significant ways by laws originating elsewhere. Legal rules are readily transplanted, they say, and the links between law and culture, history, economics, and language are easily exaggerated.
In the hunt for a test case to add substance to this debate, I offer an indepth analysis of Israel's exclusionary rule to assess the challenges of translating and transplanting doctrines across borders and cultures. My choice to focus on evidence law stems from the particular challenges that its transplantation poses. (13) The strong ties between rules of evidence and the broader institutional context in which they are administered suggest that evidence law can provide unique insight into the dangers of legal borrowing and the use of comparative law. (14) The exclusionary rule, (15) a doctrine intimately linked to judicial structure, offers a particularly illustrative test case. (16) Hence, in Part I, I examine the Issacharov decision, in which the Israeli Supreme Court redefined the exclusionary rule in what the Court proclaimed to be a groundbreaking decision. Was the decision in fact as revolutionary as it suggests? The Court's considerable, and often questionable, reliance upon comparative law may have misled the Court to see an unremarkable case as groundbreaking.
Issacharov is only the most recent attempt by the Israeli Supreme Court to transplant foreign exclusionary rules into Israel. In Part II, I provide a historical look at four stages in the development of the exclusionary rule in Israeli evidence law to further illustrate the inherent difficulties of legal transplanting. That Part explores the Israeli Supreme Court's ongoing struggle to define and translate "admissibility," a term which developed primarily in bifurcated jury systems, into Israel's unitary judiciary. During different eras in Israeli history admissibility has connoted different aspects of the common law term, yet without capturing its full and true essence.
Part III addresses the risks of treating foreign law as precedent and the dangers of legal emulation. I ask why the Israeli Supreme Court has relied so heavily upon the common law in shaping Israel's evidence rules, despite the fundamental differences between Israel and other common law jurisdictions. (17)
Finally, Part IV evaluates the rhetorical role of comparative law as a tool for legitimizing judicial innovation. I discuss how comparative law can be (mis)used to create a sense of international consensus concerning an issue highly debated within a jurisdiction. I consider how comparative law can bolster the power of courts to "revolutionize" and how it served such functions in Issacharov.
I. EXCLUDING ILLEGALLY OBTAINED EVIDENCE IN ISRAEL: THE ISSACHAROV DECISION
In May 2006, the Israeli Supreme Court handed down its decision in Issacharov, (18) awarding Israeli courts the discretion to exclude illegally obtained evidence. The decision was hailed by many as "a revolution in Israeli evidence law." (19) Rafael Issacharov, a private in the Israel Defense Forces (IDF), had been arrested for absence without leave. Entering a military prison, he was strip-searched and marijuana was found in his underwear. Issacharov was taken for interrogation but was not warned of his right to an attorney. During this interrogation, he provided the Military Police with a urine sample that indicated previous drug use, and he admitted to prior possession and use of marijuana. On appeal, the Supreme Court ruled that Issacharov's confession and the physical evidence he provided should be excluded because the defendant was not informed of his right to an attorney. The defendant was acquitted of three counts of prior use and possession and convicted only for possession of the marijuana found on him. (20)
The opinion of the Court in Issacharov distinguished the new doctrine, which gave courts the discretion to exclude evidence, from the old doctrine established in 1978 in Meiri v. Israel. (21) Under Meiri courts were able to reduce the weight awarded to illegally obtained evidence--and in some cases even give such evidence no weight at all--but could not exclude it. (22) According to the Issacharov Court, the creation of an exclusionary rule for illegally obtained evidence should be viewed as part of the larger "Constitutional Revolution" that has swept Israel since the passage of Basic Law: Human Dignity and Liberty in 1992. The law created a new balance between crime control and due process, leading to a greater protection of the defendant's procedural rights. This protection translated into the greater power and willingness of courts to exclude illegally obtained evidence, not merely diminish its weight. (23)
Comparative law played an important role in the Supreme Court's reasoning in Issacharov, both as a basis for the Court's authority to create an exclusionary rule and in determining the scope of the new doctrine. When addressing the anticipated criticism that establishing an exclusionary rule should be left to the Israeli parliament, the Court turned to "legal systems that are similar to our own." (24) It showed that even in the absence of explicit legislative authorization, the United States, England, and Australia all developed an exclusionary rule through judicial fiat, sometimes followed later by legislative approval. (25)
The Supreme Court also relied upon comparative law in formulating the proper scope of the exclusionary rule, turning again to a series of "legal systems that are similar to our own," namely common law jurisdictions. (26) The Court first examined the primary objectives served by exclusion in different jurisdictions. (27) It distinguished between the American model, which concentrates primarily on deterring the police from obtaining evidence illegally, (28) and the Canadian and English models, which emphasize exclusion's role in protecting the reputation of the judicial system and the fairness of the process. (29) According to the Canadian Charter of Rights and Freedoms, evidence should be excluded if its admission would "bring the administration of justice into disrepute." (30) In England evidence can be excluded if it will have "such an adverse effect on the fairness of the proceedings that the court ought not to admit it." (31)
The Israeli Supreme Court went on to distinguish between backward-looking remedies, meant to "erase" the damage caused by the illegal action, and forward-looking remedies aimed at avoiding future injustice caused by admitting such evidence against the defendant at trial. (32) The former was attributed to the American approach and the latter to the other legal systems cited. (33) From these two distinctions flowed a third: automatic exclusion as opposed to discretionary exclusion, with the Court choosing the latter as the most appropriate model for the Israeli legal system. (34)
The Court illustrated three groups of considerations that might bear on a trial judge's decision to exercise her discretion to exclude evidence. (35) The first group dealt with the nature and severity of the illegal act itself. The trial judge could consider whether the illegal act was marginal and technical or fundamental; whether it was intentional; whether extenuating circumstances could justify the police behavior (for example, whether the police acted to prevent evidence destruction); and whether there was a ready way to obtain the evidence legally, a factor that weighs toward exclusion. Finally, the trial judge may consider whether the police would have obtained the evidence had it not been for the use of illegal means. (36)
The second group of considerations addressed credibility; the Court examined the influence that the illegal means might have had upon the reliability of the evidence obtained, distinguishing primarily between testimonial and physical evidence. (37) Finally, the third group of considerations involved the balancing that courts must conduct between the social advantages and disadvantages of excluding the evidence--the more severe the crime and the more central the evidence in securing a conviction, the less likely exclusion would be. (38)
A. Issacharov and Meiri: Has Anything Really Changed?
Issacharov was described by the Israeli Supreme Court as a significant departure from previous precedents and particularly from the doctrine established in 1978 in Meiri v. Israel. (39) Under Meiri, (40) courts could not exclude illegally obtained evidence, but could decide to give the evidence little or no weight. Like Issacharov, Meiri also addressed the infringement of the right to counsel. The police failed to summon Moshe Meiri's attorney to a photo identification. Although the court in Meiri deemed the witness's identification of the defendant to be completely reliable, the Supreme Court decided to give the evidence no weight whatsoever. The Court ruled that police failure to comply with the law could reduce the weight of the evidence obtained, and may even result (as it did in this instance) in awarding such evidence no weight at all, leading to the acquittal of the defendant. Meiri came after a series of incidents in which the police had failed to abide by legal guidelines and paid no heed to the Supreme Court's repeated warnings. (41)
Reviewing the ruling in Meiri, one must wonder: is Issacharov a significant departure, or is the difference primarily semantic? In Israel's unitary judiciary, in which judges engage in both fact-finding and legal determinations, the differences between the Meiri doctrine of "admissible, but without weight" and Issacharov's "discretionary exclusion" are all but self-evident. Let us first consider how alike the two doctrines are in practice: under both doctrines, legal determinations concerning the admissibility of evidence are made by the same person who engages in fact-finding--the judge. The judge examines the content of the contested evidence before determining its fate; under neither doctrine is exclusion automatic even if the court determines that the rights of the defendant have been infringed; that is, under both doctrines, the trial judge retains discretion over the fate of the evidence. What, then, are the differences between excluding evidence and giving it no weight in a unitary court system? (42)
The Supreme Court in Issacharov encountered some difficulty when attempting to distinguish the existing doctrine from the new one. (43) The Court gave no hint of the practical consequences of the change in doctrine. It conceded that the two doctrines would often lead to the same result, yet neglected to provide a single example in which the two approaches would lead to different outcomes. (44) Moreover, before Issacharov was decided, some legal scholars had indicated that the two doctrines were de facto commensurate and would produce identical results. (45) In fact, in Issacharov itself the two doctrines could have led to the same outcome, and Private Issacharov could have been acquitted of marijuana possession and use even under the Meiri doctrine: the Court could have given no weight to his confession to prior use and to the urine sample he provided, leaving the prosecution with too little evidence to prove the crimes. (46)
B. Distinguishing Admissibility from Weight in Bifurcated and Unitary Courts
Although the distinction between admissibility and weight had no significance in the Israeli context, it does carry great importance in bifurcated courts. In most common law systems cited by the Israeli Supreme Court in Issacharov, the distinction between a question of admissibility and one of weight was critical. It determined who decided the fate of the evidence--judge or jury. Whereas admissibility is determined by the judge, weight is the province of juries; if a judge excludes the evidence, the jury can no longer determine its weight. In motions to suppress illegally obtained evidence, the result of exclusion is that the jury never has access to the questionable evidence at all. In England and the United States, suppression motions are held, whenever possible, outside the hearing of the jury, which never even learns of the existence of such evidence. (47) In the United States, these hearings are often conducted before a jury is even impaneled. (48) Hence, in bifurcated jury settings, the distinction between admissibility and weight is significant. In Israel, which does not employ juries, the distinction does not carry similar ramifications.
Although Israel does not employ juries, there are a number of ways in which the Israeli Supreme Court could have given substance to the new doctrine of "exclusion" as distinguished from the old doctrine of "no weight" in a unitary system. First, in an effort to maintain the fact finder's ignorance toward the excluded evidence, the Court could have ordered that a different judge rule on preliminary motions to suppress evidence on constitutional grounds. (49) Another possibility would be to limit motions to suppress to proving the circumstances surrounding the obtaining of the evidence (e.g., the behavior of the police interrogators when obtaining the confession), without examining the substance of the contested evidence. Some courts in the United States have followed such practice in bench trials when determining the voluntariness of a confession. (50) But as we have seen, the Israeli Supreme Court ruled that the decision to exclude must be based in part upon the effect of the illegal means on the content of the evidence obtained; to make such a determination, the court must be allowed to examine the …